Opinion
C. A. 3:24-884-JFA-PJG
04-12-2024
Floyd E. Brown, Plaintiff, v. City of Columbia; City of Columbia Police Department; David Hatcher; Stacy Harris; Shawn McNichols; Theresa Wilson, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Floyd E. Brown, proceeding pro se, brings this civil rights action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for initial review pursuant to 28 U.S.C. § 1915. By order dated March 12, 2024, the court provided Plaintiff the opportunity to file an amended complaint to correct deficiencies identified by the court that would warrant summary dismissal of the Complaint. (ECF No. 13.) Plaintiff did not file an amended complaint that is complete in itself as instructed, but Plaintiff filed handwritten arguments and photos that the clerk of court docketed as supplements to the original complaint. (ECF No. 18 & 21.) Having reviewed the supplements in accordance with applicable law, the court concludes that this case is still subject to summary dismissal for failure to state a claim upon which relief can be granted. Accordingly, this case should be summarily dismissed without prejudice and without issuance of service of process.
Plaintiff filed this action on a standard complaint form used by the court. Plaintiff indicates the court has jurisdiction over this action because he brings this suit for violations of the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, Plaintiff claims the defendants violated the Fourth Amendment by attempting to illegally seize a particular piece of property, apparently owned by Plaintiff. Plaintiff also claims this violated his right to due process and equal protection under the Fourteenth Amendment. Plaintiff alleges he has a court date set for October 1, 2024 in municipal court regarding the demolition of the property. Plaintiff further alleges the City of Columbia Police Department gave Plaintiff an “order to demolish and remove in twenty days.” (Compl., ECF No. 1 at 5.) Plaintiff seeks damages for the purported constitutional violations.
In attachments to the Complaint, Plaintiff provides a “Notice and Order to Demolish and Remove” issued by a City of Columbia Police Department Code Enforcement Officer to Plaintiff on February 15, 2024. (Compl., ECF No. 1-1 at 3.) The notice indicates that more than thirty days had passed since Plaintiff was issued a notice of violation and correction order in March 2023 and it orders Plaintiff to demolish the structure on the property and remove the debris within twenty days. The notice also indicates that Plaintiff's failure to demolish the structure and remove the debris may result in the demolition of the structure by the City of Columbia and a lien being placed against the property. The notice further indicates that Plaintiff may appeal from the notice to the Property Maintenance Board of Appeals.
In the court's March 12 order identifying deficiencies in the Complaint, the court construed the Complaint as asserting claims of damages pursuant to 42 U.S.C. § 1983. However, the court concluded that Plaintiff failed to plausibly allege that a constitutional injury occurred from an illegal seizure or taking such that he could seek damages to remedy the violation because the property has not yet been demolished. The court also found that Plaintiff failed to plausibly allege a violation of his right to due process because he alleged that he received notice of the City's intent to demolish and that he has a hearing scheduled to contest it. Further, the court found that Plaintiff failed to plausibly allege an equal protection violation because he made no allegation that he was treated differently from others that were similarly situated. As to the defendants, the court found that Plaintiff failed to state a claim upon which relief could be granted against the municipal defendants because he failed to allege that the purported violations were caused by a municipal policy or custom. Similarly, the court found that Plaintiff failed to provide any facts about how the individual defendants were personally involved in the violation of his rights.
In the supplements filed by Plaintiff, he provides pictures of the subject property (ECF No. 21) and he argues that his constitutional rights were violated because he was given notice of the demolition before his hearing date, essentially arguing that he is being injured by the “attempt” to demolish his property, (ECF No. 17).
The court finds that despite having availed himself of the opportunity to cure the deficiencies previously identified by the court, this case should nonetheless be summarily dismissed. Initially, the court notes that despite instructing Plaintiff in the March 12 order that he must file an amended pleading that is complete in itself, Plaintiff filed only briefing and evidence in response to the court's order. Thus, Plaintiff has failed to file an amended complaint that replaced the original complaint and cured its deficiencies. See Young v. City of Mount Ranier, 238 F .3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . .”).
Regardless, Plaintiff does not argue that he can allege facts that would plausibly show a constitutional violation or that the named defendants are plausibly responsible for the purported violations. The court has already addressed Plaintiff's argument that the City's mere attempt to demolish the property, without actually demolishing it, failed to show a constitutional violation, especially where Plaintiff admits he has received notice of the City's intent to demolish it and provided Plaintiff with a judicial hearing to contest it. See Knick v. Twp. of Scott, Pa., 139 S.Ct. 2162, 2170 (2019) (holding that a government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under § 1983 at that time); see also Snider Int'l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 146 (4th Cir. 2014) (“At bottom, procedural due process requires fair notice of impending state action and an opportunity to be heard.”). Therefore, Plaintiff fails to show that he can correct the deficiencies in the Complaint that justify summary dismissal of this case.
III. Conclusion
In light of the foregoing, the court recommends that this case be dismissed without prejudice and without the issuance and service of process.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).